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Respondent’s Memorandum of Fact and Law

in Response to Applicants’ Application for Leave to Appeal

Part I: Statement of Facts and Overview

  1. The Respondent submits that this application for leave to appeal ought to be dismissed with costs. While this case has attracted a great deal of media attention, the fact is that the legal issues actually raised in this case do not constitute matters which warrant another appeal to this Court. The Crown’s arguments on this application mischaracterize the decisions rendered below, identify no conflicting appellate level authorities on point, and ignore the fact that the circumstances of this case are singularly unique. Further, the Crown fails to recognize that the legal principles governing this case were previously established by this Court in Canada (Justice) v. Khadr.[1] In essence, the Crown asks this Court to review a highly discretionary and fact-driven Order to which great appellate deference is owed.
  1. In addition to the facts identified in the Crown’s Statement of Facts, the Respondent emphasizes the following unique facts of this case.
  1. The Respondent is the only Canadian citizen being held in the Guantánamo Bay detention facility, and has been held there for over 7 years without trial or other due process. At the time he was taken prisoner, the Respondent was only 15 years of age.
  1. The interrogations of the Respondent by CSIS and DFAIT were recorded with hidden video cameras, and the questioning touched upon the allegations which are the basis for the Respondent’s indefinite detention and pending prosecution. U.S. officials reviewed the video recordings and prepared their own investigative reports of them, which reports are potentially admissible as evidence before both the Guantánamo Bay “Combatant Status Review Tribunals”, “Annual Review Boards”, and Military Commissions.
  1. When all of the Canadian interrogations occurred, the Respondent’s rights to habeas corpus and to be tried before “a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples” were being violated.
  1. Additionally, prior to the March 2004 interrogation, the Canadian interrogator was advised that the Respondent was then being subjected to a “sleep adjustment” program known as the “frequent flyer program”. Pursuant to this program, the Respondent had, for three weeks, been awoken every three hours, told to pack up all his belongings, and forcibly moved from location to location. This “enhanced interrogation technique” was imposed for the specific purpose of depriving the Appellant of uninterrupted sleep for an extended period prior to being interrogated in order “to make him more amenable and willing to talk”. The Canadian official was also advised that, following the Canadian interrogation, the Respondent would be placed in isolation for three weeks and then interrogated again.[2] At the time, the Respondent was 17 years of age.
  1. Notwithstanding the above information, the DFAIT official proceeded to conduct the interrogation and to share the product thereof with the U.S.
  1. At the time of the proceeding before this Court in 2008, the Crown was suppressing the above information respecting the March 2004 interrogation. As would later be held, this suppression of information was a violation of the Respondent’s rights under s. 7 of the Charter, and was unsupported by any valid claim to national security privilege.
  1. However, even in the absence of this information, this Court held in Canada (Justice) v. Khadr that by interrogating the Respondent while his rights to habeas corpus and to a fair trial were being denied, Canada violated its own obligations under international law.[3] Although it was not necessary for this Court to determine whether this conduct also constituted violations of the Charter,[4] this Court noted in passing that these same rights to habeas corpus and a fair trial are mirrored in the Charter.[5]
  1. In the June 25, 2008, decision of Mr. Justice Richard Mosley in Federal Court proceeding DES-1-08, it was held that the infliction of the frequent flyer program by U.S. authorities constituted a violation of the United Nations Convention Against Torture and the Geneva Conventions. Molsey J. also held that “Canada became implicated in the violation when the DFAIT official was provided with the redacted information and chose to proceed with the interview.”[6] Mosley J.’s decision arose in a separate legal proceeding, was not appealed, and may not be collaterally attacked by the Crown in the present proceeding.
  1. On January 22, 2009, President Barack Obama issued an Executive Order confirming that the Guantánamo Bay detention facility will be closed no later than January 22, 2010. The Order also indicated that “New diplomatic efforts may result in an appropriate disposition of a substantial number of individuals currently detained at Guantánamo”, and that “The Secretary of State shall expeditiously pursue and direct such negotiations and diplomatic efforts with foreign governments as are necessary and appropriate to implement this order.”[7]
  1. In his decision of April 23, 2009, O’Reilly J. followed the previous finding of this Court that the Charter applied to the Canadian interrogations in Guantánamo.[8]Following the previous decision of Mosley J., he found that this conclusion applied a fortiori in light of Canada’s knowledge that the Respondent had been subjected to the frequent flyer program.[9] He then found that the violations of international law previously identified by this Court also constituted a violation of s. 7 of the Charter.[10]Turning to the broad discretion conferred upon him by s. 24(1), O’Reilly J. considered the unique circumstances of this case, notably the lack of any evidence or alternative remedies advanced by the Crown, and concluded that the Order requested was a “just and appropriate remedy”.[11]
  1. Evans and Sharlow JJ.A. of the Federal Court of Appeal introduced their majority reasons by emphasizing the narrow scope of the issues then before them.[12] They then agreed with O’Reilly J. that interrogating prisoners who have been “prepared” for the interrogation through the infliction of cruel and unusual punishment constitutes a violation of s. 7 of the Charter.[13] Turning to s. 24(1), they concluded that O’Reilly J. properly turned his mind to the considerations identified in Doucet-Boudreau and consequently did not abuse the broad discretion conferred upon him by that remedial provision.[14]
  1. Nadon J.A. dissenting held that any duties owed by Canada to the Respondent had been satisfied by sending various diplomatic notes to the U.S.[15] Also, in his view, the “remedy of repatriation” was “totally disproportionate in the circumstances”.[16]Nadon J.A. briefly added at the end of his reasons that Canada’s participation in the interrogations did not violate the Charter since: “Mere knowledge of Mr. Khadr [sic] mistreatment cannot be equated with participation in such mistreatment.”[17]

Part II: Questions in Issue

  1. The Respondent respectfully disagrees with the Crown’s articulation of the issues in this case, and submits that the issues that would actually be raised in any appeal of this case are the following:

(a) Can Canadian officials interrogate Canadian children who have been “softened up” for interrogation by the infliction of cruel and unusual treatment, and then share the product of such interrogations with the foreign officials who inflicted the treatment?

(b) Is the sphere of foreign relations immune from the legal authority conferred upon the Courts by s. 24(1) of the Charter?

(c) Did O’Reilly J. commit an abuse of the discretion conferred upon him by s. 24(1) of the Charter by ordering the Crown to make a request to the U.S. government?

Part III: Argument

A. The Actual Holdings of the Courts Below

  1. The Crown’s arguments on this application are all premised upon the assertion that the Courts below have established a “duty to protect” under s. 7. At paragraph 28, the Crown equates this duty with a “duty upon a state to protect its nationals abroad”. At paragraphs 27, 30, and 31, the Crown compares this duty to those rejected by the Courts of England, Australia and the United States. Further, the Crown appears to be of the view that this “duty to protect” the Respondent arises independently of its decision to participate in the Guantánamo Bay interrogation process.
  1. The Applicant submits that this, the main issue of public importance relied upon by the Crown, is not germane to this case since it is abundantly clear that no such “duty to protect” was recognized or relied upon by the Courts below. In fact, the majority of the Federal Court of Appeal expressly disclaimed any reliance upon such a duty, either by itself or by Justice O’Reilly. As they emphasized at the outset of their reasons:

34 First, the legal issues raised in this case are narrow and the facts are highly unusual. Justice O'Reilly did not decide that Canada is obliged to request the repatriation of any Canadian citizen detained abroad. He did not decide that Canada is obliged to request Mr. Khadr's repatriation because the conditions of his imprisonment breach international human rights norms. He did not decide that Canada must provide a remedy for anything done by the United States. These issues do not arise in this case and it would not be appropriate for this Court to express any opinion on them.

35 Justice O'Reilly focussed on specific conduct of Canadian officials, namely their interviewing Mr. Khadr at the prison at Guantánamo Bay for the purpose of obtaining information from him, and giving the fruits of those interviews to United States authorities without attempting to control their use of that information. That was potentially detrimental to Mr. Khadr's liberty and personal security and, most importantly, it occurred at a time when Canadian officials knew that Mr. Khadr was an imprisoned minor without the benefit of consular assistance, legal counsel, or contact with his family, who had been subjected to abusive sleep deprivation techniques in order to induce him to talk. The issue before this Court is whether Justice O'Reilly erred in law in finding that conduct of Canadian officials, in those circumstances, to be a breach of Mr. Khadr's rights under section 7 of the Charter.[18]

  1. In fact, it will be noted that the words “duty to protect” do not even appear in the majority decision that the Crown now seeks to appeal.
  1. The only duty actually recognized by the Courts below was a duty not to interrogate Canadian children who have been subjected to cruel and unusual treatment in order to make them more amenable and willing to talk. The essence of the majority’s s. 7 analysis is encapsulated in the following paragraphs 50 to 55:

50Questioning a prisoner to obtain information after he has been subjected to cruel and abusive treatment to induce him to talk does not accord with the principles of fundamental justice…

53In addition, the Charter breach resulting from the conduct of the Canadian officials is exacerbated by the fact that, at the relevant time, the officials knew that Mr. Khadr was a "child" as defined in the Convention on the Rights of the Child…

54 As stated above, the principles of fundamental justice do not permit the questioning of a prisoner to obtain information after he has been subjected to cruel and abusive treatment to induce him to talk. That must be so whether the abuse was inflicted by the questioner, or by some other person with the questioner's knowledge. Canada cannot avoid responsibility for its participation in the process at the Guantánamo Bay prison by relying on the fact that Mr. Khadr was mistreated by officials of the United States, because Canadian officials knew of the abuse when they conducted the interviews, and sought to take advantage of it.

55 Consequently, the rights of Mr. Khadr under section 7 of the Charter were breached when Canadian officials interviewed him at the prison at Guantánamo Bay and shared the resulting information with United States officials.[19]

  1. It is submitted that the above principle is, to put it mildly, uncontroversial, and is so far beyond dispute as to negate any need for further clarification by this Court. It is noteworthy that the Crown chooses to avoid this issue, and instead imputes a different ratio to the Court of Appeal’s judgment.
  1. At paragraph 32, the Crown refers to this Court’s statement in Gosselin that “[o]ne day s. 7 may be interpreted to include positive obligations”,[20] and then states that the Federal Court of Appeal has found that “such a day has arrived”. But the Court of Appeal has found no such thing. In fact, neither Gosselin nor the notion of a “positive obligation” under s. 7 is even referred to by the Court of Appeal. In fact, the only mention of Gosselin in this case occurred when O’Reilly J. emphasized that Gosselin is rendered irrelevant by the fact that Canada chose to actively participate in the Guantánamo Bay interrogations.[21]
  1. The Respondent has always advocated the existence of an expansive “duty to protect” Canadian children detained abroad similar to that now postulated by the Crown. Perhaps one day, such a principle will be recognized by this Court. But the fact remains that no such duty has been found to exist in the present case. It is submitted that the Crown should not be granted leave to appeal a decision which has not been rendered.

B. The Legal Principles Actually Governing this Case have Already been Established by this Court and by Mosley J.

  1. As explained above, the actual s. 7 issue raised by this case is not the existence or non-existence of a duty to protect Canadian citizens detained abroad. Rather, the issue is whether or not Canada’s interrogations of the Respondent under the conditions prevailing at Guantánamo constituted a violation of the Respondent’s rights under s. 7. As the majority of the Court of Appeal expressly emphasized, this issue was effectively resolved by this Court in its previous decision in Canada (Justice) v. Khadr (referred to by the majority as “Khadr 2008”). With respect to the infliction of the “frequent flyer program”, being the salient fact not disclosed at the time of this Court’s previous decision, its impact was previously determined in the final judgment of Mosley J. of June 25, 2008, which judgment was not appealed by the Crown, and which is not now before this Court.
  1. The majority’s review of the law relevant to this case consists of little more than its summary of Khadr 2008 and Mosley J.’s decision of June 25, 2008, at paragraphs 26 to 28 of their reasons for judgment.[22] With respect to their application of these principles, the majority’s analysis is encapsulated in paragraphs 47 to 49. As is repeatedly emphasized throughout this passage, their conclusions respecting s. 7 are entirely dictated by these previous authorities, and the Crown’s arguments in response are “untenable” in light of them:

47 Given Khadr 2008, the Crown must accept that the conduct of Canadian officials abroad may in certain circumstances affect the rights of an individual to such an extent that the Charter is engaged. In Khadr 2008, the Charter was engaged when Canadian officials interviewed Mr. Khadr at the Guantánamo Bay prison. Their conduct was found to be participation in the process at that prison, in breach of Mr. Khadr's Charter right to liberty and security of the person. Therefore, Justice O'Reilly was bound to conclude that Canadian officials participated in the process at the Guantánamo Bay prison as it related to Mr. Khadr, and that the Charter was engaged when they did so. It is not open to this Court to reach a different conclusion on those points.

48 When Khadr 2008 was decided, Mr. Khadr had not yet been provided with the evidence that when he was interviewed by Canadian officials, they knew of his mistreatment by sleep deprivation. That evidence became available only as a result of the disclosure of the documents reviewed by Justice Mosley following Khadr 2008. That evidence indicates that Canadian officials not only participated in a process that did not conform to international human rights norms, but they did so knowingly.

49 The Crown objects strongly to the suggestion that Canadian officials participated in the mistreatment of Mr. Khadr. They argue that any mistreatment suffered by Mr. Khadr was at the hands of officials of the United States, not Canada. That argument is untenable in the face of Khadr 2008, but even without the authority of that case it cannot be accepted. It is true that the United States is primarily responsible for Mr. Khadr's mistreatment. However, the purpose of the sleep deprivation mistreatment was to induce Mr. Khadr to talk, and Canadian officials knew that when they interviewed Mr. Khadr to obtain information for intelligence purposes. There can be no doubt that their conduct amounted to knowing participation in Mr. Khadr's mistreatment.[23]

  1. As noted above, this Court has already held that by conducting the interrogations and by sharing their product with the U.S., Canada committed violations of its obligations under international law. In so holding, this Court emphasized that these same international law obligations also happen to be mirrored in the Charter. Is it surprising then, that Justice O’Reilly and the majority of the Court of Appeal found that these violations of international law also constituted violations of the Charter? The Crown chooses to avoid this issue, and to argue instead about a “duty to protect”.

C. O’Reilly J.’s Discretionary Choice of Remedy